Jurispruden tiol – Tomorrow ' s cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Income Tax

Can Special Bench remand a case to AO? - Additional evidence admitted and case remanded - Not even law-maker can anticipate all possible situations and as to how ingeniously human mind can work: ITAT Spl Bench

Can Special Bench remand? The duty of the Special Bench in the present case, is not only to answer the question referred to it but also to dispose of the entire appeal. Not only that, even the question referred has to be answered in the light of the facts and circumstances of the case. No doubt, the Special Bench has been given the power to modify or reframe the question. But the said modification or reframing of the question cannot change the basic structure of the question and that is, that the question has to be answered in the light of the facts and the circumstances of the case, which is not possible on account of the voluminous additional evidence filed in this case. In the process, it will also be violating the mandate given to the Special Bench to dispose of the entire appeal. Thus, on the overall consideration of the circumstances we are put into, we feel that in the light of the voluminous additional evidence filed by the assessee, it would be better if the entire matter is looked into afresh by the Assessing Officer.

Law cannot envisage all possible situations: There is another aspect of the matter also. In the complex world of business, it is not possible to envisage all possible situations that may arise. Not even the law-maker can anticipate all possible situations and as to how ingenious human mind can work. Therefore, howsoever we may try to answer the legal issues; some questions not envisaged by us and yet arising from the labyrinth of the material placed on record, may remain unanswered. Some ends are bound to remain untied which may entail injustice to either or both the parties.

Central Excise

burden to prove classification is upon Department - Revenue must establish that goods fall within four corners of the taxable entry: CESTAT Majority Order

It is well settled that the burden to prove the classification is upon the department. The Revenue must establish that the goods fall within the four corners of the taxable entry - in this case Chapter heading 15.11, as RPO. The Revenue has failed to prove that no hydrogenation was undertaken. The case of the Revenue at its highest is that, according to one expert Dr. Rao , presence of linoleic acid indicates that the goods are not partially hydrogenated and according to the other expert, Dr. Arumugham , TFA was not found in a measurable quantity. Dr. Rao 's conclusion cannot be accepted in the face of the admitted position that the samples were found to contain -nickel, sesame oil and vitamin A and also conform to the standards of the PFA Rules for vanaspati.

In the light of the above I am of the view that the Revenue has not discharged the burden cast upon it to show that process of hydrogenation did not take place at foreign supplier's end and that, therefore, the goods are not HVO while the appellants have been able to establish to the contrary, namely, that the goods imported by them are HVO and not RPO as contended by the Revenue.

Central Excise

Committee of Commissioners - Revenue's Miscellaneous Application is ill-conceived and defamatory for their averment that Tribunal inflicted injustice on them – Tribunal comes down heavily on Revenue

THIS Committee business is becoming a perilous issue. Now, everyone knows that a Committee is supposed to exist in “real terms” & not be a farce. Two Commissioners sitting at different places presently form a Committee. Probably, both of them may have never even met except of course during the ritual Chief Commissioner's meetings! But the files from one Commissionerate move to another for ‘kind approval & sign, please'. Whether it is acceptance of an order or a review, the second Committee Member usually signs on the dotted line. The Finance Act, 2008 has brought an element of surprise in the entire proceedings what with the matter to be required to be referred to the Chief Commissioner/Board for its indulgence in case of difference of opinion! Board knows for sure that such instances would be a rarity & is only an assuaging exercise.

See our columns tomorrow for the judgements